Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P27 ppsx

better known as the State Children’s Health Insurance Program or SCHIP. The law con- tinues health insurance coverage for six to seven million children and increases that coverage to four million more children. President Obama also asked Congress to work with him to pass comprehensive health care reform in 2009, with the goal of providing affordable health insur- ance to every American. Such an effort would involve massive government funding and over- sight. Republican leaders in Congress have advocated a different approach, which would move away from employer-paid health insur- ance. Instead, individuals and families would be given tax-credits, which w ould be used to purchase health insurance. Proponents argue that this is a less expensive approach and that it would not involve the government. In March 2010, President Obama signed health insurance reform legislation (P.L. 111- 148, the Patient Protection and Affordability Act of 2010). FURTHER READINGS Jonas, Stephen, ed. 2007. An Introduction to the U.S. Health Care System. 6th ed. New York: Springer. Pozgar, George. 2006. Legal Aspects of Health Care Administration. 10th ed. New York: Jones and Bartlett. Sultz, Harry & Young, Kristina. 2008. & Health Care USA: Understanding Its Organization and Delivery. 6th ed. New York: Jones and Bartlett. CROSS REFERENCES Health Care Law; Physicians and Surgeons. HEALTH MAINTENANCE ORGANIZATION See HEALTH CARE LAW; HEALTH INSURANCE; MANAGED CARE . HEARING A legal proceeding where an issue of law or fact is tried and evidence is presented to help determine the issue. Hearings resemble trials in that they ordi- narily are held publicly and involve opposing parties. They differ from trials in that they feature more relaxed standards of evidence and procedure, and take place in a variety of settings before a broader range of authorities (judges, examiners, and lawmakers). Hearings fall into three broad categories: judicial, administrative, and legislative. Judicial hearings are tailored to suit the issue at hand and the appropriate stage at which a legal proceeding stands. Administrative hearings cover matters of rule making and the adjudication of individual cases. Legislative hearings occur at both the federal and state levels and are generally conducted to find facts and survey public opinion. They encompass a wide range of issues relevant to law, government, society, and public policy. Judicial hearings take place prior to a trial in both civil and criminal cases. Ex parte hearings provide a forum for only one side of a dispute, as in the case of a TEMPORARY RESTRAINING ORDER, whereas adversary hearings involve both parties. Preliminary hearings, also called preliminary examinations, are conducted when a person has been charged with a crime. Held before a magistrate or judge, a PRELIMINARY HEARING is used to determine whether the evidence is sufficient to justify detaining the accused or discharging the accused on bail. Closely related are detention hearings, which can also deter- mine whether to detain a juvenile. Suppression hearings take place before trial at the request of an attorney seeking to have illegally obtained or irrelevant evidence kept out of trial. Administrative hearings are conducted by state and federal agencies. Rule-making hearings evaluate and determine appropriate regulations, and adjudicatory hearings try matters of fact in individual cases. The former are commonly used to garner opinion on matters that affect the public—as, for example, when the ENVIRON- MENTAL PROTECTION AGENCY (EPA) considers changing its rules. The latter commonly take place when an individual is charged with violating rules that come under the agency’ s jurisdiction—for example, violating a pollution regulation of the EPA, or, if incarcerated, violating behavior standards set for prisoners by the Department of Corrections. Some bl urring of this distinction o ccurs, which is important given the generally more relaxed standards that apply to some administra- tive hearings. The degree of formality required of an administrative hea ring is d ete rmined by t he liberty in terest at s ta ke: The gr eater that interest, the more formal the hearing. Notably, rules limiting the admissibility of evidence are looser in administrative hearings than in trials. A djudica- tory hearings can admit, for example, hearsa y that generally would not be permitted at trial. (Hearsay is a sta tement by a wi tness who does not appear in person, offered by a third party who does appear.) The Administrative Procedure GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 HEALTH MAINTENANCE ORGANIZATION Act (APA) (5 U.S.C.A. § 551 et seq.) governs administrative hearings by federal agencies, and state laws largely modeled upon the APA govern state agencies. These hearings are conducted by a civil servant called a HEARING EXAMINER at the state level and known as an administrative law judge at the f ederal level. Legislative hearings occur in state legislatures and in the U.S. Congress, and are a function of legislative committees. They are commonly public events, held whenever a lawmaking body is contemplating a change in law, during which advocates and opponents air their views. Be- cause of their controversial nature, they often are covered extensively by the media. Not all legislative hearings consider changes in legislation; some examine allegations of wrongdoing. Although lawmaking bodies do not have a judicial function, they retain the power to discipline their members, a key function of state and federal ethics committees. Fact finding is ostensibly the reason for congressional hearings into public scandals. Often, however, critics will argue that these hearings are staged for attacking political opponents. Throughout the twentieth century, legislative hearings have been used to investigate such things as allegations of Communist infil- tration of government and industry (the House Un-American Activities Committee hearings) and abuses of power by the EXECUTIVE BRANCH (the WATERGATE and WHITEWATER hearings). CROSS REFERENCE Administrative Law and Procedure. HEARING EXAMINER An employee of an administrative agency who is charged with conducting adjudicative proceedings on matters within the scope of the jurisdiction of the agency. Hearing examiners are employees of feder- al, state, and local administrative agencies who act as judges to resolve conf licts that are within the jurisdiction of their particular agency. Hearing examiners have also been called hearing officers, and since the 198 0s, they are commonly referred to as administrative law judges (ALJs). The growth of administrative law started with the creation of the federal INTERSTATE COMMERCE COMMISSION and the FEDERAL TRADE COMMISSION in the late nineteenth century. Administrative la w burgeoned in the 1930s, as President Franklin D. Roosevelt’s NEW DEAL policies led to the establishment of EXECUTIVE BRANCH agencies that were charged with regulating the economy and overseeing social welfare policies. Since the 1930s, all levels of government have established administrative agencies. ALJs are governed by the Administrative Procedure Act (5 U.S.C.A. § 551 et seq. [1966 ]). They are appointed through a professional merit selection system that requires high test scores and, in many instances, experience in the particular regulatory program in which they wish to serve. Once appointed, ALJs may not be removed or disciplined, except for GOOD CAUSE. These parameters are meant to shield adminis- trative law from political appointments and political pressure. Hearing examiners serve in different adjudi- cative areas and are involved in all types of government activity, from the administration of environmental regulations to the review of UNEMPLOYMENT COMPENSATION claims. For exam- ple, when an agency is charged with issuing permits, appropriate procedures are set out in administrative regulations. If there are objections to the granting of a permit, a hearing may be held to determine the merits of the application. A HEARING EXAMINER conducts the hearing, enforces appropriate rules of evidence and procedure, and issues a decision. This decision may be appealed to a higher level of authority in the agency, and if that does not resolve the issue, to a court proceeding in the judicial branch. Even though they are not as insulated from political pressures as judicial branch judges, hearing examiners seek to maintain their inde- pendence. During the Reagan administration, in the 1980s, this independence was challenged in the SOCIAL SECURITY Administration’s(SSA’s) disability review section. SSA officials, concerned with perceived inconsistencies and inaccuracies in disability rulings, singled out for review federal ALJs who rendered the highest percentage of decisions favorable to claimants. The review program received much criticism for allegedly putting subtle pressure on the ALJs to rule against claimants more often. Though the most intrusive features of the program were abandoned, the program itself served as a reminder that ALJs were part of an administrative agency and not independent, judicial branch decision makers. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEARING EXAMINER 249 HEARSAY A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. It is the job of the judge or jury in a court proceeding to determine whether evidence offered as proof is credible. Three evidentiary rules help the judge or jury make this determination: (1) Before being allowed to testify, a witness generally must swear or affirm that his or her testimony will be truthful. (2) The witness must be personally present at the trial or proceeding in order to allow the judge or jury to observe the testimony firsthand. (3) The witness is subject to CROSS-EXAMINATION at the option of any party who did not call the witness to testify. In keeping with the three evidentiary requirements, the He arsay Rule, as outlined in the FEDERAL RULES OF EVIDENCE, prohibits most statements made outside a courtroom from being used as evidence in court. This is because statements made out of court normally are not made under oath, a judge or jury cannot personally observe the demeanor of someone who makes a statement outside the courtroom, and an opposing party cannot cross-examine such a declarant (the person making the statement). Out-of-court statements hinder the ability of the judge or jury to probe testimony for inaccuracies caused by ambiguity, insinceri- ty, faulty perception, or erroneous memory. Thus, statements made out of court are perceived as untrustworthy. Hearsay comes in many forms. It may be a written or oral statement; it also includes gestures. Essentially anything intended to assert a fact is considered a stateme nt for the purposes of the Hearsay Rule. A nodding of the head may be a silent assertion of the word yes. A witness pointing to a gun may be asserting, “That is the MURDER weapon.” Even silence has been accept- ed as a statement, as when a passengers’ failure to complain was offered to prove that a train car was not too cold (Silver v. New York Central Railroad, 329 Mas s. 14, 105 N.E.2d 923 [1952]). Not all out-of-court statements or assertions are impermissible hearsay. If an attorney wishes the judge or jury to consider the fact that a certain statement was made, but not the truthfulness of that statement, the statement is not hearsay and may be admitted as evidence. Suppose a hearing is held to determine a woman’smental competence. Out of court, when asked to identify herself, the woman said, “Iamthe pope.” There is little question that the purpose of introducing that statement as evidence is not to convince the judge or jury that the woman actually is the pope; the truthfulness of the statement is irrelevant. Rather, the statement is introduced to show the woman’s mental state; her belief that she is the pope may prove that she is not mentally competent. In contrast, a defendant’s out-of-court statement “Iam the murderer,” offered in a murder trial to prove that the DEFENDANT is the murderer, is hearsay. The Federal Rules of Evidence outline the various types of statements that are excluded by the Hearsay Rule, and are thus admissible in court. These exceptions apply to circumstances believed to produce trustworthy assertions. Some hearsay exceptions are based on whether the declarant of the statement is available to testify. For example, a witness who has died is unavailable. A witness who claims some sort of testimonial privilege, such as the ATTORNEY- CLIENT PRIVILEGE, is also unavailable to testify, as is the witness who testifies to lack of memory regarding the subject matter, or is too physically or mentally ill to testify. These definitions fall under Rule 804 of the Federal Rules of Evidence. There are also situations where hearsay is allowed even though the declarant is available as a witness. These situations are outlined under Rule 803 of the Federal Rules of Evidence. Hearsay Exceptions: Declarant Unavailable 1. Former Testimony. Testimony given as a witness at another hearing in the same or a different proceeding, or in a deposition, is admissible when the declarant is unavail- able, provided the party against whom the testimony is now being offered had the opportunity to question or cross-examine the witness (Fed. R. Evid. 804(b1)). 2. Statement Under Belief of Impending Death. A statement made by a declarant who, when making the statement, believed death to be imminent, is admissible to show the cause or circumstances of the death. For example, the statement “Horace shot me,” made moments before the declarant died, is admissible for the purpose of proving GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 250 HEARSAY that Horace committed murder (Fed. R. Evid. 804(b2)). 3. Statement against Interest. A statement that, at the time of its making, was contrary to the declarant’s pecuniary or proprietary interest, or that subjected the declarant to civil or criminal liability, is admissible if the declar- ant is unavailable to testify. For example, the statement “I never declare all my income on my tax returns” could subject the declarant to criminal ta x FRAUD liability, and is thus an admissible statement against interest (Fed. R. Evid. 804(b3)). 4. Statement of Personal or Family History. A statement concerning the declarant’s own birth, adoption, MARRIAGE, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unavailable to testify (Fed. R. Evid. 8 04(b4)). Hearsay Exceptions: Availability of Declarant Immaterial 1. Present Sense Impression. “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter,” is admissible hearsay (Fed. R. Evid. 803(1)). An exam- ple is the statement “That green pickup truck is going to run that red light.” 2. Excited Utterance. “A statement relating to a startling event or condition made while the declarant was un der the stress of excitement caused by the event or condi- tion” is admissible hearsay (Fed. R . Evid. 803(2)). For example, “The robber is pointing a gun at the cop!” is admissible. 3. Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then existing intent, plan, motive, design, mental feeling, pain, or bodily health is admissible (Fed. R. Evid. 803(3)). Generally, however, a statement of m emory or belief to prove the fact remembered or believed is not. For example, “After eating at that restaurant, I’m feeling rather ill” could be admitted under this exception. But the out-of-court statement “IbelieveJulietobethe murderer” would not be admitted under this exception. 4. Statements for Purposes of Medical Diagnosis or Treatment. A statement describing medical history, or past or present symptoms, pain , or sensations, or the general character of the cause or external source of those symptoms, is admissible (Fed. R. Evid. 803(4)). For example, this statement m ade to a physi- cian following an accident is admissible: “I slipped and fell on the ice, and then my left leg became numb.” 5. Recorded Recollection. “Amemorandum or record concerning a matter about whichawitnessoncehadknowledgebut now has insufficient recollection to en- able the witness to testify fully and accurately” is admissible (Fed. R. Evid. 803(5)).Therecordmusthavebeenmade when the m atter was fresh i n the witness’s memory and must reflect that knowledge correctly. One example is a detailed phone message. 6. Business Reco rds. A record, report, or memoofabusinessactivitymadebyan individual who regularly conducts the business activity is exempt from the hearsay prohibition under this ru le (Fed. R. Evid. 803(6). Written minutes of a business meeting are a common example. The normal absence of information con- tained in these types of business records may also be excluded from the hearsay prohibition (Fed. R. Evid. 803(7)). 7. Public Records and Reports . A record, report, statement, or data compilation, in any form, of a public office or agency, setting forth the activities of the office or agency or matters for which there is a legal duty to report, is admissible. Voting records of a city council are an example. Matters observed by law enforcement personnel in criminal cases are excluded under this rule (Fed. R. Evid. 803(8)). 8. Records of Vital Statistic.Adatacompi- lation, in any form, of births, fetal d eaths, other deaths, or marriages, if the report is made to a public office pursuant to requirements of the law, is a hearsay exception (Fed. R. Evid. 803(9)). 9. Records of Religious Organizations.A statement contained in a regularly kept record of a religious organization may be exempt from the prohibition against GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEARSAY 251 hearsay. Some examples are statements of birth, marriage, divorce, death, legitimacy, ancestry, relations hip by blood o r mar- riage, or simi lar facts of personal or f amily history (Fed. R. Evid. 803(11)). 10. Marriage, Baptismal, and Similar Certi- ficates. “Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or adminis- tered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a REASONABLE TIME thereafter,” are admissible (Fed. R. Evid. 803(12)). 11. Family Records. “Statements of fact con- cerning personal or family history con- tained in family Bibles, g enealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones” are hearsay exceptions (Fed. R. Evid. 803(13)). 12. Records of Documents Affecting an Interest in Property. A record purporting to establish or affect an interest in property, such as a notice of a tax lien placed on a house, is admissible hearsay if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. 13. Statements in An cient Documents .A statement in a document in existence 20 years or more, the authenticity of whic h is established, is admissible hearsay. One example is a statement in a letter written 30 years ago, provided the letter’s authen- ticity can be proved. 14. Market Reports, Commercial Publica- tions. “Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations,” ar e exce ptions to theruleagainsthearsay(Fed.R.Evid.803 (17)). 15. Learned Treatises. Statements contained in a published treatise, p eriodical, or pamphlet on a subject of history, medi- cine, or other science or art, established as a reliable authority by the testimony or admission of an expert witness, are admissible (Fed. R. Evid. 803(18)). 16. Reputation Concerning Pers onal or Family History. A reputation among members of a person’sfamilybyblood, adoption, or marriage, or among a per- son’s associates, or in the community, concerning the person’s b irth, adoption, marriage, divorce, death, ancestry, or legitimacy is an exception to the rule against hearsay. For example, the out-of- court statement “My sister was adopted, ” although hearsay, is admissible (Fed. R. Evid. 803 (19)). 17. Reputation Concerning Boundaries or General History. “Reputation in a com- munity, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located,” are admissible (Fed. R. Evid. 803(20)). For example, “Stein’sland extends south to the river” involves the reputation of a land’s boundary and falls within this exception. 18. Reputation as to Character.The“reputa- tion of a person’s character among associates or in the community” is admis- sible hearsay (Fed. R. Evid. 803(21)). One example is the statement “Sergei has never said a dishonest word.” 19. Judgment of Previous Conviction.A PLEA or judgment of guilt for a crime punish- able by death or imprisonment of more than one year is admissible hearsay (Fed. R. Evid. 803(22)). Hearsay Exceptions When the Declarant Is Unavailable to Testify 1. Former Testimony. Testimony given as a witness at another hearing in the same or a different proceeding, or in a deposition, is admissible when the declarant is unavail- able, provided the party against whom the testimony is now being offered had the opportunity to question or cross-examine the witness (Fed. R. Evid. 804(1)). 2. A Statement Made under the Belief of Impending Death. A statement made by a declarant who, when making the statement, believed death to be imminent, is admissible GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 252 HEARSAY to show the cause or circumstances of the death. For example, the statement “Horace shot me,” made moments before the declar- ant died, is admissible for the purpose of proving that Horace committed murder (Fed. R. Evid. 804(2)). 3. A Statement against the D eclara nt’sInter- est. A statement that, at the time of its making, was contrary to the declarant’s pecuniary or proprietary interest, or that subjected the declarant to civil or criminal liability, is admissible if the declarant is unavailable to testify. For example, the statement “I never declare all my income on my tax returns” could subje ct the declarant to criminal tax fraud liability, and is thus an admissible statement against interest (Fed. R. Evid. 804(3)). 4. A Statement of Personal or Family History. A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, or similar fact of personal family history is admissible hearsay when the declarant is unavailable to testify (Fed. R. Evid. 804(4)). FURTHER READINGS Binder, David F. 2002–2008. Hearsay Handbook. Eagan, MN: West. Cleary, Edward W., ed. 1987. McCormick on Evidence. 5th ed. Eagan, MN: West. Darden, Christopher, with Jess Walter. 1996. In Contempt. New York: HarperCollins. Fenner, G. Michael. 2009. The Hearsay Rule. Durham, NC: Carolina Academic. Friedman, Richard D. 1998. “Truth and Its Rivals in the Law of Hearsay and Confrontation.” Hastings Law Journal 49 (March). Kessel, Gordon Van. 1998. “Hearsay Hazards in the American Criminal Trial: An Adversary-Oriented Approach.” Hastings Law Journal 49 (March). Waltz, Jon R., and Roger C. Park. 2009. Evidence: Cases and Materials. 11th ed. New York: Foundation. Ziemer, David. 2002. “Hearsay Statements Must Be Considered Individually.” Wisconsin Law Journal (October 2). Nicole Brown Simpson’sJournals: Inadmissible as Hearsay D B uring the 1995 criminal trial of O. J. Simpson, the prosecution argu ed that Simpson kil led his former wife Nicole Brown Simpson, and that the murder was the culmination of a long pattern of domestic violence. The prosecution discovered in a safe-deposit box journals that Brown Simpson had written concerning her problems with Simp- son. The journals contained graphic language and described episodes of physical violence and threats committed by Simpson. They appeared to be a powerful demonstration of the couple’s relationship, yet they were ne ver entered into evidence at the criminal trial, and Simpson was acquitted in the killings of his former wife and her friend Ronald Lyle Goldman. The journals were inadmissible beca use they constituted hearsay evidence. The rules of evidence are generally the same in every state and federal jurisdiction. In California, where Simpson’scriminal trial was held, hearsay evidence cannot be admitted unless it meets the requirements of a well-defined exception. Oral hearsay (what one p erson t ells another about a third person) is the same as w ritten hearsay. In her journal Brown Simpson told readers what Simpson did to her. With her death, there was no way for the defense to challenge her memory, perception, and sincerity about what she had written. The rules of evidence view such nonchal- lengeable out-of-court statements as unreliable whentheyareintendedtoprovethetruthofthe matter they assert—here, that Simpson had beaten BrownSimpson,stalkedher,andmadeherfearfor her life. For the same reasons, the j ournals were not admitted at Simpson’s civil trial in 1997, in which he was found liable for the wrongful deaths of Brown Simpson and Goldman. CROSS REFERENCE Simpson, O. J. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEARSAY 253 HEARST, PATTY In the 1990s she could be seen in John Waters’s motion picture Crybaby, and heard as an off- screen caller to a radio talk show on the TV series Frasier. She had appeared on the runways of Paris as a fashion model, wearing a sequined evening gown designed by friend Thierry Mugler. Her story had been told as a movie, Patty Hearst, in which she was played by Natasha Richardson, and even as an opera, Anthony Davis’s Tania. Ever since the 1970s, Patricia Campbell Hearst has been very much in the public eye. On February 4, 1974, Hearst, the 19-year- old daughter of Randolph A. Hearst and Catherine C. Hearst, of the Hearst newspaper chain, was kidnapped by a tiny group of political extremists who called themselves the Symbio- nese Liberation Army (SLA). They locked Hearst in a closet for many weeks, where she was taunted, sexually assaulted, and raped repeatedly. The SLA held her for an unusual form of ransom: They demanded that the Hearst family distribute millions of dollars of food to poor and needy people of the San Francisco Bay area. Although the Hearsts complied with this and other SLA demands, the young woman did not return to her parents. Instead, she sent them a tape recording in which she announced that she had decided to become a revolutionary, join the SLA, and go underground. On April 15, 1974, the members of the SLA, accompanied by Hearst, robbed the Hibernia Bank in San Francisco. A month later, a botched shoplifting attempt at a sporting goods store by SLA members Bill Harris and Emily Harris led the police to the SLA hideout. A gunfight ensued, and all six SLA members inside at the time were killed. Only Hearst, the Harrises, and Wendy Yoshimura survived. Sixteen months later, and 18 months after her abduction, Hearst was arrested by the FEDERAL BUREAU OF INVESTIGATION after an investi- gation that had covered the entire United States. She was tried by jury for armed bank ROBBERY, convicted, and sentenced to seven years in prison. On February 1, 1979, after Hearst had served approximately two years of the original sentence, President JIMMY CARTER, stopping short of a full pardon, commuted her sentence. Hearst claimed at her 1976 federal trial for armed bank robbery that she had, in fact, undergone no political conversion. She claimed that even as she stood in the Hibernia Bank cradling a rifle in her arms, she remained the same person who, only a few months earlier, had chosen the china and crystal patterns for her upcoming marriage. Her defense, orches- trated by her attorneys, F. Lee Bailey and Albert Johnson, was that s he had been brainwashed. This defense did not e xist in law a nd had o nly been attempted in “coll aboration-with-the-enemy” charges against U.S. prisoners of war during the KOREAN WAR. As in the Korean War cases, the Hearst attorneys were forced to add a defense that was allowed by law: duress. The crux of the defense’s case was that Hearst, owing to brain- washing or coercion, had not had criminal intent when she participated in the bank robbery. Three defense psychiatrists testified that the DEFENDANT had not been responsible for her actions; two prosecution psychiatrists testified that she had been responsible. The young woman test ified that she had been in fear of her life as she stood inside the Hibernia Bank. The judge instructed the jurors, You are free to accept or reject the defendant’s own account of her experience with her captors Duress or coercion may provide a legal excuse for the crime charged against her. But a compulsion must be present and immediate a well-founded fear of death or bodily injury with no possible escape from the compulsion. Patty Hearst assisted the Symbionese Liberation Army (SLA) in 1974. When SLA members were later captured and Hearst was freed, she claimed she’d been brainwashed and hadn’t participated in the robbery voluntarily. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 254 HEARST, PATTY The jury found her guilty BEYOND A REASON- ABLE DOUBT , thereby implicitly stating its belief that she had acted intentionally and voluntarily in robbing the Hibernia Bank; she had been neither brainwashed nor forced to participate. In August 1987 Hearst filed a petition for a pardon before President RONALD REAGAN. Her attorney, George Martinez, stated that “she wants to put it all behind her. And she wants to get some indication that there is now complete understanding by the government of the extraordinary circumstances under which she participated” in the Hibernia Bank robbery. In 1977, as governor of California, Reagan had called for executive CLEMENCY for Hearst; he was thus considered Hearst’s best chance for a pardon. But Reagan left office in 1988 without granting the pardon. Hearst’s petition then fell to George H. W. Bush, who also failed to grant the pardon. Hearst finally received her pardon when she was among a list of controversial people, including Marc Rich, that President BILL CLINTON pardoned on his last day in office. In 1996 Hearst was a member of the Screen Actors Guild and lived just 50 miles outside of Manhattan with her husband and former bodyguard, Bernard Shaw, and her two chil- dren. In 2004 the documentary Guerrilla: The Taking of Patty Hearst was released, which told the story of Hearst and the SLA within the context of the 1970s. FURTHER READINGS Bancroft, David P. 1985. Post Traumatic Stress Disorders, and Brainwashing as State of Mind Defenses in Criminal, and Civil Fraud Cases, by David P. Bancroft. In Litigation and Administrative Practice Course Handbook series: Criminal Law and Urban Problems, PLI order no. C4-4174. “Clinton Defends Pardons, Saying Individuals ‘Paid in Full’ for Crimes.” 2001. CNN Web site (January 21). Available online at http://www.cnn.com/2001/ALLPO- LITICS/stories/01/21/clinton.pardons; website home page: http://www.cnn.com (accessed July 29, 2009). Freedman, Suzanne. 2002. The Bank Robbery Trial of Heiress Patty Hearst: A Headline Court Case. Berkeley Heights, NJ: Enslow. HEART BALM ACTS Statutes that abrogate or restrict lawsuits brought by individuals who seek pecuniary damages to salve their broken hearts. Heart balm actions are founded on the precept that the law disfavors any intrusion with the marital relationship or family ties. Such suits include actions for BREACH OF MARRIAGE PROMISE, ALIENATION OF AFFECTION, CRIMINAL CONVERSATION, and seduction. Breach of Marriage Promise Breach of promise actions are based on the theory that a promise made should be kept. A subscription to this principle, however, defeats the purpose of the engagement period prior to MARRIAGE that is designed to determine whether or not the couple is sufficiently compatible to get married. In certain situations, however, one party might take advantage of the other, as where a woman becomes engaged to a man merely for the purpose of gaining access to substantial wealth. In such cases, breach of promise actions can be utilized to compensate the individual who has been inj ured from such a relationship. A number of states, however, have eliminated breach of marriage promise suits. Alienation of Affection and Criminal Conversation A legal action may be brought against an individual who intrudes upon a marital rela- tionship. Alienation of affection means interfer- ing in such manner as to win away the love of a husband or wife from his or her spouse. Criminal conversation is ADULTERY. Conver- sation is used to mean sexual relations in this context. These actions were designed to protect the sanctity of marriage and the family relation- ship. In the early 2000s, suits for alienation of affection and criminal conversation have been abolished in most states. Seduction The right to sue for seduction belonged to a father who could bring an action against a man who had sexual relations with his daughter. At common law, the daughter did not ordinarily have the right to sue on her own behalf. A woman who was seduced by a marriage promise could sue for breach of promise if the marriage did not take place. If she became sexually involved with a man due to force or duress, she might be able to bring action for RAPE or ASSAULT. The general rule was, however, that regardless of whether the woman was an adult or a minor, her seduction was regarded as an injury to her father. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEART BALM ACTS 255 In early cases, a father was permitted to be awarded pecuniary damages only as compensa- tion for services that he lost as a result of the seduction. Subsequently, fathers were also allowed to recover COMPENSATORY DAMAGES for medical expenses, as well as damages for distress or sorrow. Seduction suits are very seldom brou ght in modern times and have been abolished by some states. One of the primary reasons for this is that they publicize the individual’s humiliation. Limitations on Heart Balm Actions A majority of judges and legal scholars are in agreement that all heart balm suits should be eliminated. Most states have enacted heart balm statutes that place limitations upon the amount of recovery. The ABOLITION of heart balm suits does not, however, prevent either individual from recovering gifts made in contemplation of marriage. Many states have ruled that gifts, such as engagement rings, must be recovered if the promise to marry is revoked. HEAT OF PASSION A phrase used in criminal law to describe an intensely emotional state of mind induced by a type of provocation that would cause a reasonable person to act on impulse or without reflection. A finding that a person who killed another acted in the heat of passion will reduce MURDER to MANSLAUGHTER under certain circumstances. The essential prerequisites for such a reduction are that the accused must be provo ked to a point of great anger or rage, such that the person loses his or her normal capacity for self- control; the circumstances must be such that a REASONABLE PERSON, faced with the same degree of PROVOCATION, would react in a similar manner; and finally, there must not have been an opportunity for the accused to have “cooled off” or regained self-control during the period between the provocation and the killing. The RULE OF LAW that adequate provocation may reduce murder to manslaughter was developed by the English courts. It was a means of avoiding the severity of the death pena lty, a fixed punishment for murder under the com- mon law, when the act of killing was caused by natural human weakness. The type of provocation considered serious enough to induce a heat of passion offense varies slightly from one jurisdiction to another, although the usual test is reasonableness. Depending upon the circumstances, ASSAULT, BATTERY, ADULTERY, and illegal arrest are illustra- tive of what may be held to be sufficient provocation. In almost all cases, the reasonable- ness of a provocation is a decision made by a jury. HEDGE FUND Hedge funds are private, loosely regulated invest- ment pools that solicit funds from wealthy individuals and other investors and invests these funds on their behalf. Hedge funds are investment monies man- aged by an individual or a busines s for the benefit of wealthy clients who place large amounts of money to the pool. Though hedge funds look much like mutual funds, they have not been subject to government regulation. Only wealthy individuals or in vestment compa- nies participate in hedge funds because of the high minimum investment, which is usually at least $1 million and sometimes as much as $5 million. Hedge funds seek high returns on their investments, but they also employ investment strategies that seek to minimize losses when there is a large market downswing. The fact that hedge funds are loosely regulated makes them prone to manipulation by unethical fund managers. The downfall of Bernard Madoff and his hedge fund in 2008 revealed that Madoff was really running a PONZI SCHEME. With the collapse of the U.S. financial markets in the fall of 2008, Madoff and a string of other hedge fund managers were exposed as con artists, leaving their clients with little or no equity. The differences between highly regulated mutual funds, which draw much of their money from retirement account deposits and institu- tional investors, and hedge funds are significant. Mutual funds must register with the SECURITIES AND EXCHANGE COMMISSION (SEC) and are subject to rigorous oversight. All prospective mutual fund investors must receive a prospectus containing specific information about the fund’s man agement, holdings, fees and expenses, and performance. Hedge funds are not required to register with the SEC, nor do they have to file periodic reports with the commission. Hedge funds issue SECURITIES in private offerings and under federal securities law are treated much different ly than mutual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 HEAT OF PASSION funds. However, even hedge funds are governed by federal laws that prohibit FRAUD, and fund managers have the same fiduciary duties as mutual fund investment managers. A major difference between hedge funds and mutual funds is what funds can charge for their services. Fees for mutual funds are subject to regulation, and investors must be provided with a fee table that can be compared with fees of other mutual funds. Hedge funds can charge whatever they like. Besides an asset-based fee, hedge fund managers usually charge an annual performance fee of between 15 percent and 25 percent of profits. This means that if the value of the fund goes up, managers can earn millions and, in some cases, hundreds of millions of dollars. The fact that hedge fund managers can become extremely wealthy makes them take higher risks than mutual fund managers. The SEC restricts the ability of mutual funds to leverage or borrow against the value of the securities in their portfolios. In contrast, hedge funds are not constrained and have relied on leveraging and high-risk strategies. The eco- nomic collapse of 2008 left many hedge funds in dire financial straits, as the value of their securities, which were pledged as COLLATERAL on loans, plummeted. A number of hedge funds went out of business as a result of these financial practices. Hedge fund investors, including pension funds, university endowments, and other institutional investors, were big losers. The attraction of extraordinary returns led them to ignore the potential risks. In response to these hedge fund abuses, Congress began to draft reform legislation in 2009. Though both the House and Senate moved forward with competing plans, passage of a bill was not expected until 2010. The TREASURY DEPARTMENT proposed legislation that identified key elements of reform: hedge funds, private equity funds, venture capital funds, and other private pools of capital must register with the SEC if they have more than $30 million of assets under management. Investment advisers will be also be required to follow new reporting, record-keeping, compliance, and disclosure requirements as well as CONFLICT OF INTEREST and anti-fraud prohibitions. FURTHER READINGS Larimore, James N., ed. 2008. Securities and Exchange Commission: Programs and Operations. New York: Nova Science. Securities and Exchange Commission. Available online at www.sec.gov (accessed December 26, 2009). Seligman, Joel. 2003. The Transformation of Wall Street: A History of the Securities and Exchange Commission and Modern Corporate Finance. 3d ed. New York: Aspen. Western, David. 2004. Booms, Bubbles, and Busts in the U.S. Stock Market. New York: Routledge. Winer, Kenneth B., and Samuel J. Winer. 2004. Securities Enforcement: Counseling & Defense. Newark, N.J.: LexisNexis. CROSS REFERENCES Ponzi Scheme; Securities and Exchange Commission v HEGEL, GEORG WILHELM FRIEDRICH Philosopher GEORG WILHELM FRIEDRICH HEGEL had a profound effect on modern thought. Hegel wrote his earliest work in 1807 and his groundbreaking Philosophy of Right in 1827. An idealist, he explored the nature of rationality in an attempt to create a single system of thought that would comprehend all knowledge. Among his chief contributions was developing the hegelian dialectic, a three-part process for revealing reason that ultimately influenced nineteenth- and twentieth-century theories of law, political science, economics, and literature. Especially in the late twentieth century, scholars debated the ideas of Hegel for their relevance to contemporary legal issues. Born August 27, 1770, in Stuttgart, Ger- many, Hegel achieved fame in his lifetime as a teacher and writer. The son of a German government official, he was originally a divinity student who later turned to philosophy. He worked as a tutor in his twenties, and later as a school principal and a professor at German universities in Heidelberg and Berlin. At the same time, he wrote far-ranging and lengthy books, including Science of Logic (1812–16) and Encyclopedia of the Philosophical Sciences (1817), which contains every element of his system of philosophy. He died November 14, 1831, in Berlin. Hegel’s theories arose partly in response to those of his predecessor, the Prussian philoso- pher IMMANUEL KANT. Believing that perception alone could determine what is real, Kant had provided a concept of reason that Hegel was able to use in building a complete theoretical system. In doing so Hegel created his own form of the dialectic (a method of critical reasoning), which he divided into three parts. Essentially, it held: (1) A thesis (idea) encourages the development of its reverse, or antithesis. (2) If THE HISTORY OF THE WORLD IS NONE OTHER THAN THE PROGRESS OF THE CONSCIOUSNESS OF FREEDOM . —GEORG HEGEL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEGEL, GEORG WILHELM FRIEDRICH 257 . person, offered by a third party who does appear.) The Administrative Procedure GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 248 HEALTH MAINTENANCE ORGANIZATION Act (APA) (5 U.S.C.A. § 55 1 et. issue SECURITIES in private offerings and under federal securities law are treated much different ly than mutual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 256 HEAT OF PASSION funds. However,. If THE HISTORY OF THE WORLD IS NONE OTHER THAN THE PROGRESS OF THE CONSCIOUSNESS OF FREEDOM . —GEORG HEGEL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION HEGEL, GEORG WILHELM FRIEDRICH 257